Volume 7 — New Mexico Reports

Appeal, from a judgment allowing defendant for Ms improvements, from the Fourth Judicial District Court, Colfax County. The facts are stated in the opinion of the court.

Appeal, from an order sustaining a motion to quash the process and service, from the Fourth Judicial District Court, San Miguel County. The facts are stated in the opinion of the court. “The real estate of a decedent shall pass directly the heirs, and not to the executor or administrator.” Laws, N. M. 1889, sec. 24. See, also, Chavez v. Perea, 3 N. M. (G-il.) 89; 1 Story’s Eq. Jur. [10 Ed.], secs. 551, 552.

Appeal, from a decree for defendants, from the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court. The assignee of a note, in suing upon the note, need not file a copy or the original of a written assignment, as the action is not on the assignment, but on the note, although the assignment would have to be introduced in evidence in order to make out a right of action in the assignee. Treadway v. Cobb, 18 Ind. 36.

Heard on motion for rehearing, and the former judgment of the court reaffirmed. The court states the case on the rehearing.

Error, from a judgment convicting the defendant of murder in the first degree, and sentencing him to the penitentiary for life, to the First Judicial District Court, Taos County. The facts are stated in the opinion of the court. ’Where the testimony is conflicting, there must be some positive evidence or the verdict will be set aside. Territory v. Bomine, 2 N. M. 148; Same v. Maxwell, Id. 250; Same v. Kelly, Id. 307.

Appeal, from a decree in favor of defendants, from the Fifth Judicial District Court, Socorro County. The facts are stated in the opinion of the court. When a court directs the manner and terms of a sale, a receiver is held to a strict compliance with them, so far as it is possible. ■ Beach on Receivers, secs. 730, 731.

Ekrok, from a judgment for plaintiff, to the Second Judicial District Court, Yalencia County. The facts are stated in the opinion of the court. A patent of the United States is void if the land described therein has been reserved by, or never belonged to, the government.

Error, from a judgment convicting defendant of selling liquors on Sunday, to the Fifth Judicial District Court, Socorro County. Motion for rehearing overruled, O’Brien, C. J., dissenting. The court states the ease on the rehearing.

Error, from a judgment for defendants, to the Fifth Judicial District Court, Socorro County. The facts are stated in the opinion of the court. Parol evidence of the contents of a writing is not admissible if a copy of the writing is in existence. The copy must be produced as the best evidence obtainable. 1 G-reenlf. Ev., sec. 84, and note; 1 Whar. Ev., see. 90, et seq.; Renner v. Bank of Columbia, 9 Wheat. 596; Cornett v. Williams,- 20 Wall. 226.

Appeal, from an order sustaining the demurrers to the answers filed by the mechanic’s lien claimants, from the Third Judicial District Court, Sierra County. Reversed, Seeds, J., dissenting. The facts are stated in the opinion of the court. A probate clerk can administer an oath to a lien •claimant who desires to verify his notice or claim of lien before such clerk. Comp.

Error, from a judgment for plaintiffs, to the Fifth Judicial District Court, Socorro County. The court states the case upon the rehearing. Upon the argument of this case- it was substantially admitted, by counsel for plaintiff in error, that, the effect of the contract of October 20, 1887, was to make the garnishee a debtor of the Short Horn Cattle Company, and the point was not argued by defendants in error.

<p>Appeal from the First Judicial District Court, Santa Fe County. Motion by appellant to advance •cases, overruled. Motion by appellee to strike from •docket, sustained.</p>

Error, from a judgment for plaintiff, to the Fifth Judicial District Court, Socorro County. Judgment reversed, Seeds, J., dissenting. The facts are stated in the opinion of the court.

Error, from a judgment in favor of defendant, to the Fourth Judicial District Court, San Miguel County. Judgment affirmed, Freeman, J., dissenting. The facts are stated in the opinion of the court.

Error, from a judgment for plaintiff, to the Second Judicial District Court, Bernalillo County. Motion to dismiss the appeal, sustained. Motion to quash writ of error and set aside the supersedeas, denied, and judgment reversed. O’Brien, C. J., dissenting. The facts are stated in the opinions of the court. The plaintiff was a fellow servant with the other servants in charge of the work train.

Former opinion affirmed; Seeds and Fall, JJ., dissenting. The case on the rehearing is stated in the opinion of the court.

Error, from a judgment for plaintiff, to tlie Second Judicial District Court, Bernalillo County. Motion of defendant in error to quash writ overruled, and cause remanded, with instructions to the court below to set aside the judgment as to the New Mexico & Southern Pacific Railroad Company. The facts are stated in the opinion of the court. The plaintiff was a naked trespasser, and, under the circumstances of this case, should not have been allowed to recover. A., T. &.

<p>Error, from the Third Judicial District Court, Dona Ana County.</p> <p>The facts are stated in the opinion of the court.</p>

Eeeoe, from a judgment by default in favor of plaintiff, to the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court.

Error, from a judgment in favor of plaintiff, to the First Judicial District Court, Santa Fe County. The opinion states the case. The resignation of J. Francisco Chavez, superintendent of the penitentiary, being conditional and qualified, did not take effect until the happening of the condition. Mecham on Public. Officers, secs. 409, 414, 415; Edwards v. United States, 103 U. S. 474.

Error, from a judgment of the Fifth Judicial District Court, Lincoln County, convicting defendant of unlawfully carrying a deadly weapon. The facts are stated in the opinion of the court. It is “for the court or jury to decide whether such carrying of. weapons was necessary or not.” Sec. 10, ch. 30, 1887, as amended by Laws of 1891, ch! 63, p, 118, sec. 3.

Error, from a judgment in favor of defendant, to the Fifth Judicial District Court, Socorro County. The facts are stated in the opinion of the court.

Appeal, from a judgment convicting the defendant of a simple assault and battery, from the Third Judicial District Court, Grant County. The facts are. stated in the opinion of the court. “The indictment under a statute prohibiting assault with a dangerous or deadly weapon, should not only aver the weapon to be dangerous or deadly, but should specify it.” 1 Am. and Eng.

Appeal, from a judgment convicting defendant of unlawfully selling liquors and merchandise on Sunday, from the Fifth Judicial District Court, Socorro County . The facts are stated in the opinion of the court. In cases where imprisonment may be inflicted, as punishment for an offense, defendant must present himself at the arraignment, and plead personally. Bish. Crim. Proc., sec. 268; Whart. Crim.

Appeal, from a judgment convicting defendant of murder in the first degree, and sentencing him to be hung, from the Third Judicial District Court, Dona Ana County. Judgment reversed; Freeman, J., dissenting. The facts are stated in the opinion of the court. It was in the discretion of the court to allow the jury to separate, and such separation was not prejudicial to defendant, and, unless some prejudice is shown, there is no ground for a new trial.

Error, from a judgment in favor of defendant, to the Fifth Judicial District Court, Socorro County. The facts are stated in the opinion of the court. As to the right of trial by jury, preserved by the seventh amendment to the constitution of the United States, see Cobb v. Henniker, 55 N. H. 185. At the time of the adoption of that amendment a general verdict with special findings of fact in the same case was unknown to the courts of common law. 2 Bouv.

Appeal, from a judgment for plaintiff, from the Second Judicial District Court, Bernalillo County. Judgment reversed; Freeman, J., dissenting. The facts are stated in the opinion of the court. The full age of either male or, female is twenty-one, until which time they are considered as infants. 1 Am. and Eng, Encyclopedia of Law, title Age; Brown’s Law Diet. [Sprague’s Ed.]; Bouvier’s Law Diet.; Coke on Litt. 78.

<p>Misdemeanors, What Constitute — Violation op United States Elec- . tion Laws — Prosecution in Territorial Court — Joinder op Offenses. — On a prosecution, on indictment, in a territorial court for a violation of the United States election laws, where the ques- - . tion is whether the offense charged is a felony or misdemeanor, it‘ is , to be determined by reference to the laws of the United States, not of the territory. All acts, other than felonies, which have been made offenses by statutes, and are not per se wrong, 'are to be deemed •' misdemeanors, unless expressly declared to be felonies in the laws ■ '. creating them, and, as such, may be joined in the same indictment; and the court may, in such case, properly refuse to compel the prosecution to elect upon which count it will proceed.</p> <p>Id. — Sufficiency op Indictment — Rev. Stat. U. S., Sec. 5515, Construed. — In an indictment, under section 5515, Revised Statutes of • ■ the United States, making it an offense, among other things, to neg- .! lect or refuse to make and return the certificate of election as required by law, or to refuse to perform any other duty required by this section or any other section of the statute, it is sufficient to allege the duty imposed, its undertaking, and the intentional refusal of the accused to perform it. Allegations, in such indictment, that the acts charged were willfully and maliciously done, are mere surplusage, and unnecessary.</p>

Error, from a judgment in favor of plaintiffs, to the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court. The granting or overruling of a motion for continance is a matter resting in the sound discretion of the trial court, even in murder cases. Territory v. Kelly, 2 N. M. 292-301; Bish. Crim. Proc., sec. 951, and ■cases cited; Thomas v. McCormick, 1 N. M. 371. See, also, sec. 2048, Comp. Laws.

Error, from a judgment convicting defendant of embezzlement, to the Second Judicial District Court. The facts are stated in the opinion of the court. The charge against the accused being a felony, the admission in evidence of the certified transcript from the office of the sixth auditor of the treasury was in violation of his right, under the sixth «amendment to the constitution of the United States, “to he confronted with the witnesses against him,” and error.

Appeal, from decrees sustaining demurrers to and dismissing the bills, from the Second Judicial District Court, Bernalillo County. Reversed and remanded, with instructions to reinstate the cause as to the adult defendants; Lee, J., dissenting. The facts are stated in the opinion of the court. The enforcement of mechanics’ liens should be favored by a liberal construction of the statute. Empire L. & C. Co. v. Engley et al., 33 Pac. Rep. 153.

Error, from a judgment in favor of plaintiffs, to-the Third Judicial District court, Grant County. Judgment affirmed; Lee, J., dissenting. The facts are stated in the opinion of the court. Every fact that the plaintiff in error assumed the burden of proving to justify its invasion of the ground, of defendants in error had been denied by all the witnesses of the defendants in error. Iron-Silver Mining Co. v. Cheesman, 118 IJ. S. 529.

Error, from a judgment in favor of plaintiff, to the Fourth- Judicial District Court, San Miguel County. The facts are stated in the opinion of the court. The record shows no service of process on Blanchard five days before the term. Jurisdiction of the person must appear in some way, and if the face of the-record leaves that in doubt, the judgment is erroneous, and it has been held even void. Freeman on Judgments, sec. 124.

Eeeoe, from a judgment in favor of defendant, to the Fourth Judicial District Court, San Miguel County. Judgment affirmed; Lee and Seeds, JJ., dissenting. The facts are stated in the opinion of the court. If there is a time specified within which conditions must be performed, they can not be performed afterward. Tied. Real. Prop., sec. 274. In a grant like the one under consideration time is of the essence of the contract. Southern Pac.

Appeal, from a judgment for defendant, from the Fourth Judicial District Court, San Miguel County. Affirmed; Collier and Laughlin, JJ., dissenting. The facts are stated in the opinion of the court. The ruling of the court below in support of the amended pleas was erroneous. Comp. Laws, 1884, sec. 1848; Lee v. Walker, 53 N. W. Rep. 597; Bray’s Adm’r v. Seligman’s Adm’r, 75 Mo. 31 (40); 1 Am. and Eng. Encyclopedia of Law, p. 624.

The facts are stated in the opinion of the court. • The court erred in refusing to grant a continuance on the first application and affidavit of… Held: in both criminal and civil cases, that the overruling of a motion for a continuance is a matter resting in the sound discretion of the trial court, and that, unless the record discloses such an abuse of discretion under the circumstances as will justify the court in disturbing the judgment, this court will not interfere.

The facts are stated in the opinion of the court. Appellant in his assignment of errors refers to “a portion of the jury” as having been erroneously allowed “to separate after they had been examined and accepted, and before a full jury was impaneled,” and his citations refer to a “jury,” when as a matter of fact and law there was no jury at that time, only a possible or prospective jury, which might be made up from the list, and in which the portion already accepted might be…

The facts are stated in the opinion of the court. Where an operation is performed such as an ordinary, prudent, and skillful physician deems necessary, and it is performed with ordinary skill, the one inflicting the wound is responsible, although the operation caused the death; but otherwise, if the operation was not necessary, or if it was not performed with ordinary skill, or from grossly erroneous surgical or medical treatment. Desty’s Crim.

Error, from a judgment granting the petitioner a peremptory writ of mandamus, to the First Judicial District Court, Santa Fe County. Affirmed; Freeman, J., dissenting. Also order entered in injunction case number 553, referred to in the opinion of the court, affirming the judgment of the court below dissolving the injunction, it having been stipulated between the counsel in that case that it should be determined by the conclusions of the court in the mandamus proceeding.

Petition for writs of prohibition, one by the Lincoln-Lucky & Lee Mining Company to the district court, sitting in the First Judicial District, for the trial of causes arising under the laws of the United States; and the other by W. P. Cunningham to the county commissioners of Santa Fe County. Preliminary writs made absolute in each cause; Freeman, J., dissenting. The facts are stated in the opinion of the court.

The facts are stated in the opinion of the court. Section 1024, Revised Statutes of the United States, under which the court consolidated these cases, has nothing to do with the practice in territorial courts; it refers exclusively to courts of the United States. Clinton v. Englebreeht, 13 Wall. 434; Hornbuckle v. Toombs, 18 Id. 648; United States v. Reynolds, 98 U. S. 145; Same v. Same, 1 Utah, 319. .

and refusing to receive poll taxes, required to be paid by them in qualifying as voters. The facts are more fully stated in the opinion of the court. BEIEE OE CATBON & SPIESS. Under such a statute as that contained in the first section of the jury law, chapter 95, laws of 1891, the authorities are not uniform as to whether, after trial and verdict, a defendant in a criminal case can raise an objection to the qualifications of jurors, with effect, upon a motion for new trial.

Error, from a judgment • in favor of plaintiff, to the Fourth Judicial District Court, San Miguel County. The facts are stated in the opinion of the court. The court should enter final judgment in favor of plaintiff in error under section 2190, Compiled Laws, 1884. An acknowledgment, or new promise, to be effectual to revive a debt, must be unqualified and unconditional.

Error, from a judgment in favor-of defendant, to the Fifth Judicial District Court, Socorro County. The facts are stated in the opinion of the court. The warrant 'was issued on account of assessment of 1893, payable “out of any money in the treasury to the credit of the court fund.” This language is plain and unmistakable. Halstead v. Corn’rs, etc., 56 Ind. 363; McConnell v. Baker, 29 Barb. 81; Tuckers v. City of Virginia, 2 Am.

Appeal, from a judgment of the Second Judicial District Court, Bernalillo County, convicting the defendant of an assault with a deadly weapon. The facts are stated in the opinion of the court. Where a statute enumerates particular classes of persons or things followed by general words, the general words will be limited in their meaning and restricted in their operation to objects of like kind with those specified. State v. Bryant, 90 Mo. 534.

Proceedings, under the rules of the supreme court, by the territory of New Mexico against H. S. Clancy, clerk of the supreme court, A. L. Kendall, Charles W. Dudrow, and Victor Ortega, county commissioners of Santa Fe county, to show cause why they should not be punished for contempt of court for disobeying an order from the Honorable Needham C. Collier, associate justice of the supreme court, directing the issuance of a writ of prohibition, prohibiting and restraining the…

Ebbob, from a judgment in favor of defendants, to the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. The defendants are to be treated in this case as not being bona fide purchasers without notice. Moelle v. Sherwood, 148 S. S. 21. See, also, Id. 29.

Appeal, from an order in favor of complainant, decreeing, on demurrer, that a deed of trust should have priority over certain mechanics’ liens, from the Third Judicial District Court, Sierra County. The facts are stated in the opinion of the court. As to what is a continuous contract, such as to give a miner the benefit of a lien until he ceases to work upon the property, see Kryme v. Occidental Mill & Mining Co., 8 Nev. 219.

Eeboe, from an order in favor of defendant, quashing an attachment, to the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. Courts discharging statutory duties and exercising statutory powers, such as are authorized by the statute, can not go beyond the statute itself. Railroad Co. v. Telegraph Co., 112 U. S. 307; Thatcher v. Powell, 6 Wheat. 116.

<p>F<-R.-R.nT?., from an order in favor of defendant, quashing an attachment levied upon certain corporate stock attempted to be conveyed under a deed of assignment made on the same day the levy was made, to the Second Judicial District Court, Bernalillo County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Petition for rehearing overruled.</p>

Error, from a judgment in favor of defendants, dismissing the cause for want of jurisdiction, to the Fifth Judicial District Court. The facts are stated in the opinion of the court. It is not contended that the special grant of jurisdiction under section 1910, Eevised Statutes of the United States, conferred general chancery and common law jurisdiction exercised by United States circuit and district courts in cases between citizens of different states.

The court states the case on the rehearing. The plea of non assumpsit infra sex annos does not apply in this case. It was bad in substance, and is not cured by the replication. Hale v. Andrus, 6 Cowen, 230. The plea of actio non aeerevit infra sex annos is-necessary whenever the declaration contains a count on a cause of action which did not accrue until after the making of the contract. 3 Chitty, PI. 938.

Error, from a decree in favor of defendants, to the Fourth Judicial District Court, San Miguel County. The facts are stated in the opinion of the court.

Eeeoe, from a judgment in favor of plaintiff, to the Third Judicial District Court, Grant county. The facts are stated in the opinion oí the court. The court erred in striking out the second plea, denying execution of the note sued on. Sec. 1922, Compiled Laws, N. M. 1884. Any defense which at common law would be available under the general issue, and which does not involve the authenticity of the signature, was available to the defendant in this case.

Appeal, from a decree in favor of complainant, from the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. The allegations excepted to were not impertinent, and if true, there could be no full and final settlement and distribution of the estate of the deceased minor, without'taking into account all his property. 1 Danl. Ch. Pr. 336 [Perkins Ed. 338], citing 1 Vernon, 29; Id. 334, and cases cited.

Appeal, from a decree in favor of defendant, from the Fourth Judicial District Court, San Miguel County. The facts are stated in the opinion of the court.